Earlier this year, I noted that it often takes a few years for new members of the Supreme Court to get acclimated to the job. Justice Ketanji Brown Jackson is moving ahead of schedule. With the end of the term last month, she appears to have found her place on the court—as a straightforward and unambiguous critic of the conservative majority’s ideological project.
Jackson’s recent dissents show a growing willingness to criticize her colleagues and the Trump administration in both legal and nonlegal terms—a departure from the court’s typical unwritten norms on how the justices interact with each other in their formal writings. She is not merely arguing that her colleagues are wrong about the legal questions before them but that their goals and efforts are not exactly judicial in nature.
Her dissent in Trump v. CASA last week illustrated her approach. The 6–3 majority forbade lower courts from issuing “nationwide injunctions,” a tool to constrain allegedly illegal policies by presidents of both parties, especially over the past decade. The ruling allowed the White House to partially move forward with its effort to dismantle birthright citizenship, something that is explicitly forbidden by the Fourteenth Amendment’s citizenship clause.
Justice Sonia Sotomayor wrote the main dissent for the court’s liberals, where she condemned her colleagues for “playing along” with the Trump administration’s procedural gamesmanship and warned that “no right is safe in the new legal regime the court creates.” Her 44-page dissent was a thorough, holistic evaluation of the legal flaws in the majority’s reasoning and the dangerous outcomes it could produce.
Jackson, who joined Sotomayor’s dissent, also wrote her own. “I write separately to emphasize a key conceptual point: The Court’s decision to permit the Executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law,” she wrote. From there, she dispensed with some of the typical rhetorical norms that the justices use when speaking ex cathedra.
“It is important to recognize that the Executive’s bid to vanquish so-called ‘universal injunctions’ is, at bottom, a request for this court’s permission to engage in unlawful behavior,” she wrote in her opening. While Sotomayor addressed this danger in more abstract terms, Jackson made clearer that the threat is the Trump administration itself, and that its lawlessness is by design.
She then criticized Justice Amy Coney Barrett, who wrote the majority opinion, for reducing the case to a “mind-numbing technical query” about the equity powers of England’s High Court of Chancery in the 1790s—a not-so-subtle dig at originalism’s emphasis on history and tradition. “That legalese is a smokescreen,” she wrote. “It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law? To ask this question is to answer it.”
Jackson did not dwell at length on the precise legal arguments and deferred to Sotomayor’s work instead. “My objective is to expose the core conceptual fallacy underlying the majority’s reasoning, which, to me, also tends to demonstrate why, and how, today’s ruling threatens the rule of law,” she explained. That fallacy, she argued, was using the English court’s powers as a reference point for the American judiciary’s powers.
“The Founders of the United States of America squarely rejected a governing system in which the King ruled all, and all others, including the courts, were his subordinates,” Jackson wrote. “In our Constitution-centered system, the People are the rulers and we have the rule of law. So, it makes little sense to look to the relationship between English courts and the King for guidance on the power of our nation’s Judiciary vis-à-vis its Executive.”
Describing this approach as a “conceptual fallacy” is a rebuke of originalism, where the court’s jurists often use medieval and early modern English laws and practices to divine the “original public meaning” of the Constitution. This practice can have its interpretive uses from time to time, but it is most often used by the court’s conservative justices as a “smokescreen,” as Jackson aptly put it, while channeling cases toward their preferred outcomes.
Barrett, for her part, was uncharacteristically scathing in response. “We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” she wrote in her opinion for the court. “We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” I cannot predict the future, but based on current trends, it is hard to imagine that this line will age well.
Jackson’s pointed critiques of the conservatives’ preferred interpretive methods have drawn similarly sharp responses before. Earlier this year in Stanley v. City of Sanford, the justices ruled against a Florida firefighter who had argued that the city violated the Americans with Disabilities Act’s provision on workplace discrimination by offering separate health plans depending on whether the firefighter retired based on a disability or not.
The decision was a splintered one, with Justice Neil Gorsuch writing for a five-justice majority for only part of his opinion. He concluded that because the provision is limited to “qualified individuals,” and those individuals are defined as someone who “can perform the essential functions of the employment position that [the individual] holds or desires,” it did not apply to retired employees. As a result, the plaintiff could not sue the city on those grounds. (The court left other ones open to her.)
Jackson disagreed with the court’s approach. “No one seriously disputes that the [ADA] prohibits disability discrimination with respect to retirement benefits,” she wrote in her dissent. “Unfortunately, however, by viewing this case through the distorted lens of pure textualism, the Court misperceives those protections today.” She instead focused on the “clear design of the ADA” and argued that the court’s ruling “plainly counteracts what Congress meant to—and did—accomplish.”
Gorsuch, in response, said Jackson’s methods were at odds with the court’s modern repudiation of legislative history or intent when reading statutes. With textualism ascendant in the Roberts court, the majority now reads federal laws only as they are written, even if that would lead to absurd or self-contradictory outcomes. “Finding ‘pure textualism’ insufficiently pliable to secure the result they seek, [Jackson and the plaintiff both] invoke the statute’s ‘primary purpose’ and ‘legislative history,’” Gorsuch scoffed.
He observed that, as the court “has emphasized many times, what Congress (possibly) expected matters much less than what it (certainly) enacted.” Jackson, who fired back in a footnote, said that his “insufficiently pliable” remark—which implied that she was bending the law to seek a preferred outcome—“stems from an unfortunate misunderstanding of the judicial role.”
“Our interpretative task is not to seek our own desired results (whatever they may be),” Jackson argued. “And, indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress’s aims does exactly that—and no more.”
Most justices would have probably stopped there, but Jackson went further to critique textualism as a whole. “By ‘finding’ answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as ‘textual’ inevitabilities,” she explained. “So, really, far from being ‘insufficiently pliable,’ I think pure textualism is incessantly malleable—that’s its primary problem—and, indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.”
This bluntness isn’t without precedent among Supreme Court justices. Sotomayor and Justice Elena Kagan have both disparaged conservative legal philosophies and goals in their own terms, albeit less directly. (Sotomayor, who joined most of Jackson’s dissent in the ADA case, explicitly did not join her footnote on the majority’s “desired outcome.”) While those examples can be found sporadically throughout their tenures on the bench, Jackson’s approach increasingly looks like the norm. All of the cases that I mention in this article come just from this term.
To that end, it more closely resembles the scorn that the court’s conservative justices once heaped upon the court’s liberal and moderate majorities. Justices like Antonin Scalia and Clarence Thomas used to argue frequently in defeat that the majority was not just wrong as a matter of legal reasoning, but that its entire jurisprudence was a vehicle for their personal policy preferences on abortion, LGBT rights, criminal justice, and so on. Now the worm has turned.
Even by that standard, however, her comments are temperate. It was Scalia, for example, who said that Breyer’s call to revisit the constitutionality of capital punishment in 2015 “rejects the Enlightenment.” In Obergefell v. Hodges, the case that struck down same-sex marriage bans nationwide that same year, he said that Anthony Kennedy’s writing showed that the court had descended from legal reasoning to the “mystical aphorisms of the fortune cookie.”
Jackson’s dissents show less scorn for her individual colleagues and more scorn for their ideological project as a whole. In a case earlier this term where the court went out of its way to strike down California’s vehicle-emissions standards, Jackson expressed concern in her dissent that the majority’s decision “comes at a reputational cost for this Court, which is already viewed by many as being overly sympathetic to corporate interests.”
A less diplomatic justice—or, rather, a less judicial one—may have simply said outright that her colleagues are beholden to corporate interests. Instead, she presented citations from journalists and academics that said so, as well as some arguments to the contrary, and lamented that the “unfortunate perception seems pervasive.” Her overall message, I noted last month, was fairly clear.
In March, for example, a federal district court blocked the Trump administration from using the Alien Enemies Act to send Venezuelan nationals whom it accused of having gang affiliations to a prison in El Salvador, where they face indefinite detention. The Supreme Court’s conservative majority, minus Barrett, ruled in April that the lower court’s temporary restraining order was invalid and required the detainees to file habeas petitions instead.
Sotomayor again wrote the principal dissent, joined by the other two liberals and (in part) by Barrett. Jackson, writing separately and solo, said that she agreed with all of Sotomayor’s points. She then criticized the other five justices in more direct and personal terms. Jackson said she “question[ed] the majority’s choice to intervene” and warned that its “fly-by-night approach to the work of the Supreme Court” was “misguided” and “dangerous.”
“I lament that the Court appears to have embarked on a new era of procedural variability, and that it has done so in such a casual, inequitable, and, in my view, inappropriate manner,” Jackson wrote in her separate dissent. “At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944).”
Korematsu was the Supreme Court’s infamous decision to uphold Japanese-American internment. It is an appropriate citation for a case where the executive branch is invoking vague national security powers to whisk away people for presumably indefinite detention, but it is also a blunt rebuke that signifies greater-than-usual condemnation. Jackson then peeled back the curtain a bit to chastise her colleagues for how they approach cases like this in general.
“With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s court leaves less and less of a trace,” she concluded. “But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.” This was not, strictly speaking, a legal argument. It was a condemnation of the majority’s overall approach to the law, couched in moral and democratic terms.
Ironically, Jackson is in the same position that some of her older conservative colleagues once found themselves in. She is only 54 years old—a teenager by Supreme Court standards. Absent congressional reform, the Supreme Court will likely have a conservative majority well into the 2030s and 2040s. Stephen Breyer, Jackson’s predecessor, served on the court until he was 83 years old. She will reach that marker in 2053.
In the long run, Jackson may be writing for the day when a liberal majority on the high court is able to restore the Constitution—and especially the Fourteenth Amendment—as it once existed. But there is a palpable sense of urgency to her dissents as well. As the Trump administration bends the constitutional order to his authoritarian whims, it is not enough to appeal to the “brooding spirit of the law,” as one justice famously once said about the role of dissents in the court’s work. Jackson apparently does not think the country can wait that long.
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